Vor-641•—if 

DA 21-0612

IN THE SUPREME COURT OF THE STATE OF MONTANA

2022 MT 215N

DALE YATSKO AND JANELLE YATSKO

d/b/a GREEN CREEK DISPENSARY,

 Plaintiffs and Appellees,

 v.

CASCADE COUNTY, MONTANA,

 Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,

In and For the County of Cascade, Cause No. BDV 21-439

Honorable Amy Eddy, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Mark F. Higgins, MACo Defense Services, Helena, Montana

For Appellees:

Bruce A. Fredrickson, Angela M. LeDuc, Rocky Mountain Law 

Partners, P.C., Kalispell, Montana

Submitted on Briefs: September 14, 2022

 Decided: October 25, 2022

Filed:

__________________________________________

Clerk

10/25/2022

Case Number: DA 21-0612
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Justice Beth Baker delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating 

Rules, we decide this case by memorandum opinion. It shall not be cited and does not 

serve as precedent. Its case title, cause number, and disposition shall be included in this 

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana 

Reports. 

¶2 The Eighth Judicial District Court granted a preliminary injunction in favor of Dale 

and Janelle Yatsko, doing business as Green Creek Dispensary (collectively the 

“Yatskos”), permitting them to continue their medical marijuana operation pending 

litigation on their compliance with Cascade County’s Zoning Regulations (“Regulations”). 

The County appeals, arguing that the District Court misapprehended factual testimony and 

committed “several evidentiary errors,” namely adopting certain requests it deemed 

admitted and “conduct[ing] its own investigation.” After reviewing the preliminary 

injunction record, we conclude that the District Court did not manifestly abuse its 

discretion and affirm. 

¶3 In 2015, the Yatskos entered an agreement to operate their business, Green Creek 

Dispensary, on the Dickmans’ property. The lease permitted the Yatskos to “occupy and 

use [the] premises for the operation of a business for growing and selling marijuana . . . .” 

The Yatskos began operation on the Dickmans’ property in the spring of 2016. In 2017, 

the Dickmans requested that the County re-zone their property from Suburban Residential 

to Agricultural because of their understanding that the Yatskos could operate as Medical 
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Marijuana Providers within Agricultural zoning districts. Their application did not 

mention the Yatskos or their marijuana operation. The County approved the Dickmans’ 

application. 

¶4 In 2018, the County provided the Yatskos a “Summary of Permissible and 

Impermissible Uses for Medical Marijuana Dispensaries and Providers.” The Summary 

explained that Medical Marijuana Dispensaries could operate only in Heavy Industrial 

zoning districts but that Medical Marijuana Providers could operate in Agricultural zoning 

districts. At the time the Summary was provided, the Yatskos properly were licensed as 

Medical Marijuana Providers with the State.

¶5 In 2021, the County re-zoned the Dickmans’ property to Mixed Use 20. Mixed Use 

20 zoning districts are not regulated for any medical marijuana-related use. The 2021 

Regulations do not provide special permits for medical marijuana in Mixed Used 20 zoning 

districts. The 2021 Regulations do provide an exception for lawfully existing buildings 

and land uses in effect prior to the enactment of the 2021 Regulations. The County 

determined that the Yatskos did not meet this exception and therefore could not continue 

operating.

¶6 The County gave the Yatskos until July 2022 to comply with the 2021 Regulations 

or “risk their licensure with the State.” The Yatskos brought an action in August 2021 for 

relief declaring their qualification for the 2021 Regulation exception. In October 2021, the 

County issued the Yatskos notice to immediately cease operations or be subject to 

prosecution and a daily fine up to $500. Following an evidentiary hearing, the District 
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Court granted a preliminary injunction to the Yatskos, preventing the County from 

enforcing its notice while the litigation remained pending.

¶7 “District courts are afforded a high degree of discretion to grant or deny preliminary 

injunctions. Accordingly, we will not overturn the district court’s decision absent a 

manifest abuse of discretion.” BAM Ventures, LLC v. Schifferman, 2019 MT 67, ¶ 7, 395 

Mont. 160, 437 P.3d 142. A “manifest” abuse of discretion is one that is “obvious, evident, 

or unmistakable.” Driscoll v. Stapleton, 2020 MT 247, ¶ 12, 401 Mont. 405, 473 P.3d 386 

(citations omitted). “[I]n considering whether to issue a preliminary injunction, neither the 

district court nor this Court will determine the underlying merits of the case giving rise to 

the preliminary injunction.” Planned Parenthood of Mont. v. State, 2022 MT 157, ¶ 5, 

409 Mont. 378, 515 P.3d 301 (quoting Driscoll, ¶ 12) (brackets in original). This Court’s 

analysis of a preliminary injunction “does not express any opinion about the ultimate 

merits” of a case. Benefis Healthcare v. Great Falls Clinic, LLP, 2006 MT 254, ¶ 19, 334 

Mont. 86, 146 P.3d 714.

¶8 Courts may grant injunctive relief on any one of five enumerated grounds. Section 

27-19-201(1)-(5), MCA. These subsections are disjunctive; “only one subsection need be 

met for an injunction to issue.” BAM Ventures, LLC, ¶ 14 (citations omitted). Here, the 

District Court relied on the following subsections of § 27-19-201, MCA:

(1) when it appears that the applicant is entitled to the relief demanded and the 

relief or any part of the relief consists in restraining the commission or 

continuance of the act complained of, either for a limited period or 

perpetually;

(2) when it appears that the commission or continuance of some act during the 

litigation would produce a great or irreparable injury to the applicant;
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(3) when it appears during the litigation that the adverse party is doing or 

threatens or is about to do or is procuring or suffering to be done some act in 

violation of the applicant’s rights, respecting the subject of the action, and 

tending to render the judgment ineffectual[.]

Section 27-19-201(1)-(3), MCA. 

¶9 For a court to issue an injunction under § 27-19-201(1), MCA, an applicant need 

only make “a prima facie showing” of entitlement to relief. Planned Parenthood of Mont., 

¶ 6. Under this standard, an applicant must demonstrate a need to preserve “property or 

rights in status quo” pending a final judgment. Sweet Grass Farms, Ltd. v. Bd. of Cty. 

Comm’rs, 2000 MT 147, ¶ 28, 300 Mont. 66, 2 P.3d 825. “We have defined ‘status quo’ 

as ‘the last actual, peaceable, noncontested condition which preceded the pending 

controversy.’” Planned Parenthood of Mont., ¶ 6 (quoting Sandrock v. DeTienne, 

2010 MT 237, ¶ 16, 358 Mont. 175, 243 P.3d 1123 (citations omitted)). 

¶10 To issue an injunction under § 27-19-201(2), MCA, a court must find that the 

applicant will suffer a “great or irreparable injury” due to the opposing party’s commission 

or continuance of an act. Caldwell v. Sabo, 2013 MT 240, ¶ 29, 371 Mont. 328, 308 P.3d 

81. Section 27-19-201(3), MCA, is implicated when an adverse party threatens to violate 

the applicant’s rights in a way that renders eventual judgment ineffectual. City of Whitefish 

v. Bd. of Cty. Comm’rs of Flathead Cty., 2008 MT 436, ¶ 23, 347 Mont. 490, 199 P.3d 201. 

¶11 The District Court entered findings and granted a preliminary injunction on all three 

of these statutory grounds. Under § 27-19-201(2) and (3), MCA, the court relied on 

testimony and evidence demonstrating that the Yatskos invested approximately $150,000 

into their Green Creek Dispensary building; that Green Creek Dispensary houses 1,000 
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marijuana plants worth approximately $1,250 each; that the Yatskos grew their plants from 

seed, each taking years to reach the proper maturity for medical grade marijuana; that 

forcible relocation would deprive the Yatskos’ clients of reasonable access to their 

prescriptions; and that litigation already cut the Yatskos’ monthly revenue by 

approximately $20,000. 

¶12 The County argues that the District Court erred by granting a preliminary injunction 

based on the Yatskos’ asserted harms, noting that we have held that “[m]oney damages are 

not considered irreparable harm, because money damages may be recovered in an action 

at law without resort to equity.” Caldwell, ¶ 29 (quotation omitted) (brackets in original). 

The County incorrectly relies on Caldwell. Caldwell involved a breach of contract claim; 

generally, the relief for breach of contract is limited to monetary damages. Caldwell, ¶ 25. 

We held that injunctive relief was inappropriate for the specific action because an 

injunction “to prevent terms of the contract from being enforced [did] not transform [the] 

action into one of equity.” Caldwell, ¶ 27. The situation before us, however, does not 

present a breach of contract issue, and the County ignores our decision in Four Rivers Seed 

Co. v. Circle K Farms, 2000 MT 360, 303 Mont. 342, 16 P.3d 342. 

¶13 Four Rivers Seed Company sought damages for breach of contract and conversion 

from Circle K Farms after Circle K replanted third-generation potato seed from the 

second-generation potato seed provided to it by Four Rivers in its attempt to grow 

fourth-generation potatoes. Four Rivers Seed Co., ¶ 8. Though lawful to do so, farmers in 

Montana did not grow fourth-generation potatoes because the potatoes were more 

susceptible to certain vulnerabilities compared to prior generations. Four Rivers Seed Co., 
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¶ 7. Four Rivers sought injunctive relief to prevent Circle K from certifying its crop as 

fourth-generation potatoes; the action did not otherwise prevent the sale or use of the 

fourth-generation potatoes. Four Rivers Seed Co., ¶ 9. Four Rivers sought through 

injunctive relief to protect its reputation as well as the monetary loss of its investment. 

Four Rivers Seed Co., ¶ 9. The trial court deemed monetary damages from a final judgment 

inadequate due to the risk to Four Rivers’s investment and the damage to its reputation if 

Circle K were to certify its potato crop as fourth generation. Four Rivers Seed Co., ¶ 17. 

It found that later monetary or legal remedies would prove ineffectual by virtue of the 

specific harms that Four Rivers would suffer; it accordingly granted a preliminary 

injunction. Four Rivers Seed Co., ¶¶ 17-18. We held that the trial court did not abuse its 

discretion based on our review of the evidence supporting its decision. Four Rivers Seed 

Co., ¶ 17. 

¶14 Similarly here, the District Court record supports its findings that the Yatskos stand 

to suffer great harm without injunctive relief and that later monetary or legal remedies 

would prove ineffectual. The Yatskos articulated the effects on both their clients and their 

inventory if they had to make an immediate move to a Heavy Industrial zoning district. 

Many of the Yatskos’ clients are disabled; the Yatskos testified that it is difficult for these 

clients to travel outside city limits. This difficulty is compounded by a lack of 

“comprehensive public transportation.” Moving the Yatskos’ operation would deny lawful 

prescriptions to these clients. Additionally, the Yatskos put significant time, effort, and 

money into their marijuana plants. They invested in a building that could house their plants 
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effectively. If the Yatskos were forced to move to an undeveloped location without such 

a building prior to the close of litigation, they would risk damage to their plants. 

¶15 Without stating any opinion on the Yatskos’ ultimate chances of success, we find 

substantial evidence in the record to support the District Court’s findings of harm and its 

conclusion that an eventual judgment in the Yatskos’ favor could be ineffectual if the 

injunction did not issue. The court exercised its discretion “in furtherance of the limited 

purpose of preliminary injunctions to preserve the status quo and minimize the harm to all 

parties pending final resolution on the merits.” Davis v. Westphal, 2017 MT 276, ¶ 24, 389 

Mont. 251, 405 P.3d 73 (citation omitted). Though it was presented with conflicting 

evidence, we conclude that the court did not manifestly abuse its discretion when it 

determined that the Yatskos would suffer great harm and that later remedies would be 

ineffectual without injunctive relief. 

¶16 The District Court also determined that the Yatskos made a prima facie case, 

pursuant to § 27-19-201(1), MCA, that “preventing Cascade County from enforcing the 

Cascade County Zoning Regulations against the [Yatskos] is appropriate to preserve the 

status quo . . . .” It considered the status quo to be “the operation of Green Creek 

Dispensary at the . . . property for at least the past 5.5 years consistent with the State license 

to do so.” The District Court relied on testimony, review of the Regulations, and evidence 

of communications between the Yatskos and the County—all presented at the preliminary 

injunction hearing—to reach its conclusion.

¶17 The County argues that the District Court relied on factual errors in its findings. 

The County also argues that the District Court erred in its conclusion by improperly 
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deeming certain of the Yatskos’ assertions as admitted despite the County’s attestations 

that the Requests for Admission were not served. The County complains further that the 

court acted improperly when it contacted the Clerk and Recorder’s Office and Planning 

Department to obtain the Regulations. The court eventually received the Regulations from 

counsel, but it commented on the difficulties of accessing the Regulations through the 

County’s website. We find it unnecessary to entertain these arguments. The District Court 

needed to find satisfied only one subsection of § 27-19-201, MCA, to properly issue an 

injunction. BAM Ventures, LLC, ¶ 14. The record contains other testimony and evidence 

independent of these alleged transgressions to support the District Court’s grant of a 

preliminary injunction on the basis of § 27-19-201(2) and (3), MCA. Because a movant 

need satisfy only one of the disjunctive statutory criteria to obtain preliminary relief, we 

do not consider whether the Yatskos satisfied the standards of § 27-19-201(1), MCA.

¶18 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our 

Internal Operating Rules, which provides for memorandum opinions. This appeal presents 

no constitutional issues, no issues of first impression, and does not establish new precedent 

or modify existing precedent. The District Court’s ruling was not a manifest abuse of 

discretion. We affirm. 

/S/ BETH BAKER

We Concur: 

/S/ JAMES JEREMIAH SHEA

/S/ LAURIE McKINNON

/S/ JIM RICE

/S/ DIRK M. SANDEFUR